Tivo hearing today?

[jacmyoung]

....TiVo does not need to prove infringement on receivers already adjudged to infringe. DISH/SATS needs to prove those no longer infringe, and that may not be enough to escape the disable order in the injunction.

The law says an infringer can modify the adjudicated devices in order to design around the patent. The 4 million DVRs most certainly fall into the adjudicated devices category.

The law says in a contempt proceeding, when there is design around, the patentee must prove with clear and convincing evidence the design around still infringes.

The law also says if the infringer can establish the doubt that the accused devices (in this case, the 4 million DVRs with the new software) may no longer infringe, then a contempt will not be appropraite, the patentee must seek a new action, or a new lawsuit.

In any summary proceedings, which the contempt proceeding is one of them, the mover (TiVo) must prove with clear and convincing evidence, not the non-mover (DISH). The non-mover only needs to establish the doubt to avoid a contempt.

All of the above what I said are based on the law, I have quotes for all of the above, you know it.

Your notion that E* must prove non-infringement in a summary proceeding has no basis, you never quoted the law anywhere that the non-mover has the burden of proof in a summary proceeding. It is the opposite, the mover must prove with clear and concincing evidence in order to get the contempt charge they want on the defendant.

The only times you have ever found cases where the non-movers had failed were when the non-movers never tried to design around the patent, or the design around was only colorable, meaning in bad faith.

A good faith design around has always helped an infringer to avoid a contempt charge, no exception, regardless if the products were adjudicated already or not, or if the adjudicated products were already in the field or not, and it does not even matter what the context of the injunction was. When there was doubt whether infringement still existed, there was no contempt, period.

 

[Greg Bimson]

The law says an infringer can modify the adjudicated devices in order to design around the patent. The 4 million DVRs most certainly fall into the adjudicated devices category.

The law says in a contempt proceeding, when there is design around, the patentee must prove with clear and convincing evidence the design around still infringes.

You'd be fine until right here.

The action currently before the court is not an accusation of infringement. TiVo is not accusing contempt because of infringement. TiVo's accusation is that the disable order has not been followed. It is your (and also DISH/SATS', as well as CEO Charles Ergen's) contention that the design-around takes precedence over the disable order.

That is far from "when there is a design-around". Not one quote has been found where a design-around takes precedence over a disable order or recall of an adjudicated device.

 

[jacmyoung]

...Not one quote has been found where a design-around takes precedence over a disable order or recall of an adjudicated device.

I have in fact posted plenty of quotes to demonstrate the above, most of them quotes from the appeals court, you know the court that tells the lower courts what they should or should not do. Some from the lower courts too. You simply dismissed each one of them.

We shall not go in circle again, let the judge’s ruling be our verdict. It should be out soon I hope.

 

[vampz26]

What's the difference?.

All the difference in the world...

Judges make mistakes too, but not as you say "as easily". The history of this case itself is a good example. And the reason parties can appeal is because judges make mistakes sometimes.

...and thats why...

As a whole, parties in dispute on the other hand can "easily make mistakes", because there is about 50% chance one side will be wrong.

True...its seldom black and white at any level. Its the shade of the grey areas that make the difference...

Not so at all. Parties in dispute are most certainly biased, and judges' job is to make an unbiased decision based on law. By definition unbiased decisions carry more weight than biased opinions..

HA!!! GOOD LUCK finding a judge like THAT!

As long as judges are elected officials with a political party to support, as well as a moral agenda of their own, they will NEVER be unbiased! Please! Don't even...

I agree, you do not have to care. You will continue to have your DVR.

Thats fine...but just to make myself clear. My only point here is that regardless of what side anyone takes in this whole Tivo vs. E* discusion, many people try to support their opinions as being correct soley on the basis of the opinion of a judge, and, as you've accurately pointed out, judges notoriously make mistakes. And as I've pointed out, judges are inherantly as biased as anyone else based on their own convictions. So whats left by which to support a personal opinion.

Nothing.

Any attempt to prove a point using the opinion of a judge is nothing more than a classic appeal to false authority.

 

[jacmyoung]

...as you've accurately pointed out, judges notoriously make mistakes. ....

No I did not say that. You have the right to your opinion, just please do not put words in my mouth.

 

[vampz26]

No I did not say that. You have the right to your opinion, just please do not put words in my mouth.

very well...

Judges make mistakes too, but not as you say "as easily". The history of this case itself is a good example. And the reason parties can appeal is because judges make mistakes sometimes.

I sincerely apologize and humbly retract the word "notoriously" from my statement.

Sorry about the misunderstanding...:up

 

[Greg Bimson]

I have in fact posted plenty of quotes to demonstrate the above, most of them quotes from the appeals court, you know the court that tells the lower courts what they should or should not do. Some from the lower courts too. You simply dismissed each one of them.

We shall not go in circle again, let the judge’s ruling be our verdict. It should be out soon I hope.

I'll agree that the judge's ruling be our verdict, and hope it is out by year's end.

However, I still stand behind my assertion that of all the citations given, not one of them apply to the devices which were adjudicated as infringements. The main citation, KSM v. Jones, deals with an order of contempt granted on a product that had never been before the court. Contempt was granted without the District Court finding infringement on these newly manufactured work-arounds.

In TiVo v. EchoStar, the pending contempt motion addressed the devices already found infringing. The suggestion by you that a device found infringing must be relitigated to find infringement is counter to the mandate of law and law of this case. Infringement does not need to be found on devices that have already infringed. That sheer fact alone should be reason for DISH/SATS to prove to the court they no longer infringe.

Instead, what has been produced are opinions of outside counsel and testimonies from the infringer. The problem is that exact combination was "tried" by the court two and a half years ago, and DISH/SATS lost. So it isn't like DISH/SATS can simply say the evidence they've given supports a finding of non-infringement, especially when this contempt hearing is not about infringement at all.

 

[jacmyoung]

...Infringement does not need to be found on devices that have already infringed...

As I said you simply ignored cases that proved you wrong. The Foodtprint2.0 case was exactly about a service provided by web servers that were found to have infringed in the field, and after a software update, the judge found no contempt, even though the servers never stopped working at the hands of the end users, despite the fact the judge clearly ordered the servers to stop in her injunction. The only thing you tried to make that case "irrelevant" was because as you said in that case the judge "allowed" such software update. But again, there is no requirement by the law that the court must first allow the modification before the infringer may do so, even Judge Folsom said on 9/4 he did not necessarily disagree with the fact E* did not inform him of the design around until the contempt proceeding started.

...That sheer fact alone should be reason for DISH/SATS to prove to the court they no longer infringe.

The sheer fact simply does not exist. Besides, the defendant has no chance during a contempt proceeding to even prove non-infringement. Because the law does not allow the judge to determine if the design around is infringing or not, during a contempt proceeding, only whether it is more than colorable or not.

It is however the plaintiff who must prove with clear and convincing evidence that infringement still exists. If they fail to do so, it is not to say the defendant no longer infringe, rather that there is doubt whether the defendant still infringe or not, and when such doubt exists, the judge may not find the defendant in contempt. The defendant might as well still infringe, but without proof of infringement with clear and convincing evidence, the plaintiff in such case must then seek a new action (a new lawsuit) to again try to prove the design around still infringes.

I must admit the concept is somewhat confusing. But the concept demonstrates one thing clearly, that it is very difficult to get a contempt ruling out of the court, because a contempt charge is an extraordinary court measure, not used lightly. The courts place heavy burden of proof on the plaintiffs in contempt proceedings.

In all the cases which the infringers were found in contempt, without exception, the infringers either never attempted to design around the patent, or if did, the effort was in bad faith because the design around was merely colorable.

E*'s design around is certainly substantial, because it removed 8 out of the 9 steps that were once determined to have met the TiVo's patent claim steps. This much is not in dispute, even TiVo did not dispute that, TiVo only tried to insist that the design around still infringed because one step (the PID) in the design around still met one of the 9 steps of its patent claim.

You will just have to decide for yourself if TiVo had proved with clear and convincing evidence that the design around still infringed or not, keep in mind to find infringement, all 9 out of 9 steps must be met.

 

[jacmyoung]

And this will be my last post in this particular argument before too many people gets annoyed.

The point is, your two statements are in contradiction to each other.

On one hand, you said products already adjudicated to be infringing products may not be adjudicated again, meaning such products will forever be infringing products,

On the other hand you said because of the above "sheer fact" (which is not true), it will be E* who must now prove the same products no longer infringe. If the products once found infringing will always be infringing, how can you insist E* must prove they no longer infringe? Asking them to do the impossible?

TiVo might as well sit back and see the contempt ruling handed down by the judge, why bother to even try to argue with E*? Just make the point the 4 million DVRs will forever be infringing products no matter how E* tries to modify them, simple as that. Why waste their lawyers' time? You know lawyers' time is not cheap.

 

[Greg Bimson]

This will be my last post on this subject, as well, until we get any rulings or rumors of rulings:

...Infringement does not need to be found on devices that have already infringed...

As I said you simply ignored cases that proved you wrong. The Foodtprint2.0 case was exactly about a service provided by web servers that were found to have infringed in the field, and after a software update, the judge found no contempt, even though the servers never stopped working at the hands of the end users, despite the fact the judge clearly ordered the servers to stop in her injunction.

And if the Footprint 2.0 service is no longer active, replaced with something else, then the Footprint 2.0 service has ceased to exist. Yet most of the 4 million receivers adjudicated as infringements are still in customers hands subject to an order to disable DVR functionality in those receviers. Unlike the Footprint 2.0 service, those four million DVR's still exist, although it is now closer to 3 million that are actually active.

...That sheer fact alone should be reason for DISH/SATS to prove to the court they no longer infringe.

The sheer fact simply does not exist. Besides, the defendant has no chance during a contempt proceeding to even prove non-infringement.

Do you understand what you've just said? We are four and a half years into a suit where almost four million DVR receivers were found to infringe upon a patent, and you've now just said that a contempt proceeding is not the place to prove non-infringement. So you are now saying that receivers adjudicated as infringements should be allowed to ignore a court order because DISH/SATS did something to them. But that isn't what the court order said.

The court order mandated one specific action. In other words, DISH/SATS was supposed to do something, literally one thing, and yet that action would not remove those devices from the court order.

On one hand, you said products already adjudicated to be infringing products may not be adjudicated again, meaning such products will forever be infringing products,

On the other hand you said because of the above "sheer fact" (which is not true), it will be E* who must now prove the same products no longer infringe. If the products once found infringing will always be infringing, how can you insist E* must prove they no longer infringe? Asking them to do the impossible?

I never said that the products found infringing will always be infringing. I simply said that the plaintiff must move the court to consider that the devices found infringing no longer infringe, and then get the judge to take them out of the scope of the injunction. That's what DISH/SATS tried to do with their Advanced Exchange Program. They moved the court to consider that a 721 should be replaced with an unmodified 721 and not be in the scope of the injunction. DISH/SATS then abandoned this line of inquiry to the courts, and started exchanging the infringing 721 for a 622.

The issue here is that if you no longer want devices adjudged as infringing to be in the scope of an injunction, you simply move the court to consider changes made to take it out of the injunction. You prove that a device, process or service that has been found as an infringement no longer applies and have the court bless it.

That is what the egg processing case was.

 

[jacmyoung]

Three corrections on factual issues:

1) Yes the Footprint 2.0 never ceased to exist, it continued without stopping while the new software update took place.
2) Yes, a contempt proceeding is not designed to determine if the design around is not infringing, rather to determine if the new design around is more than colorably different. And if more than colorable, the court cannot find contempt, it is not to "ignore" the order, it is that if more than colorable, the order was followed, no violation. If merely colorable, there will be a contempt, again no "ignoring" the order at all.
3) The exchange program had to do with the DVRs that was allowed to be continued used without any design around, absolutely nothing to do with the 4 million DVRs, don't mix the two.

Regarding 3), TiVo argued that for those DVRs (such as the 722s and 942s that were allowed to be used, not disabled), if they broke down, they could not be replaced with another 722 or 942, and TiVo was correct, because in the past it had always been that way, infringing products already in the field, often were allowed to continue (unlike the 4 million DVRs), but once they broke down, they could not be repaired or replaced with the same products, unless they were replaced with products that no longer infringed.

In this case, that is why E* is now replacing 722s and 942s with 622s, because E* decided not to install new software in 722 or 942, rather retired them. But remember the 622s would have still infringed had the new software not been installed in them.

The only way E* can get away with installing 622s to replace the 722s and 942s is if the new software in the 622s may not infringe. And for the same reason, the only way the 4 million DVRs can get away with not in contempt is also that, the new software may not infringe anymore.

 

[Tyralak]

Three corrections on factual issues:

1) Yes the Footprint 2.0 never ceased to exist, it continued without stopping while the new software update took place.
2) Yes, a contempt proceeding is not designed to determine if the design around is not infringing, rather to determine if the new design around is more than colorably different. And if more than colorable, the court cannot find contempt, it is not to "ignore" the order, it is that if more than colorable, the order was followed, no violation. If merely colorable, there will be a contempt, again no "ignoring" the order at all.
3) The exchange program had to do with the DVRs that was allowed to be continued used without any design around, absolutely nothing to do with the 4 million DVRs, don't mix the two.

Regarding 3), TiVo argued that for those DVRs (such as the 722s and 942s that were allowed to be used, not disabled), if they broke down, they could not be replaced with another 722 or 942, and TiVo was correct, because in the past it had always been that way, infringing products already in the field, often were allowed to continue (unlike the 4 million DVRs), but once they broke down, they could not be repaired or replaced with the same products, unless they were replaced with products that no longer infringed.

In this case, that is why E* is now replacing 722s and 942s with 622s, because E* decided not to install new software in 722 or 942, rather retired them. But remember the 622s would have still infringed had the new software not been installed in them.

The only way E* can get away with installing 622s to replace the 722s and 942s is if the new software in the 622s may not infringe. And for the same reason, the only way the 4 million DVRs can get away with not in contempt is also that, the new software may not infringe anymore.

I think you mean 721, The 722, like the 622, does not infringe.

 

[jacmyoung]

I think you mean 721, The 722, like the 622, does not infringe.

You are right, the numbers throw me off sometimes.

I continued with the last post mainly because the so called "exchange program" was a different subject, it had to do with the 197,000 DVRs (721s and 94xs) that were left untouched. E* decided to just replace them with newer models rather with the same models, because as E* said, they were discontinued and there were not a lot of those in stock to replace the broken ones, why bother.

BTW, we cannot say the 722s or 622s do not infringe, because they had not been adjudicated. TiVo of course likes to eventually prove they all infringe, in fact in TiVo's view, everyone else's DVRs (such as DirecTV or Comcast or TW...) all likely infringe on its patent.

But a no contempt from the court could end TiVo's quest because it will mean E*'s new DVR technology can stand on its own. We shall see.

 

[Tyralak]

You are right, the numbers throw me off sometimes.

I continued with the last post mainly because the so called "exchange program" was a different subject, it had to do with the 197,000 DVRs (721s and 94xs) that were left untouched. E* decided to just replace them with newer models rather with the same models, because as E* said, they were discontinued and there were not a lot of those in stock to replace the broken ones, why bother.

BTW, we cannot say the 722s or 622s do not infringe, because they had not been adjudicated. TiVo of course likes to eventually prove they all infringe, in fact in TiVo's view, everyone else's DVRs (such as DirecTV or Comcast or TW...) all likely infringe on its patent.

But a no contempt from the court could end TiVo's quest because it will mean E*'s new DVR technology can stand on its own. We shall see.

We can only hope. Because it would lead to a monopoly on DVR technology. Well, except for DirecTV, who bought the actual inventor of the DVR, ReplayTV. So, they can tell Tivo to suck it, because they own Replay's patents.

 

[Greg Bimson]

One:

1) Yes the Footprint 2.0 never ceased to exist, it continued without stopping while the new software update took place.

The Court's Order requires Cable & Wireless to shut down Digital Island's Footprint 2.0 service as configured and described at trial...
Digital Island

Software update means no longer "configured and described at trial".

Two:

2) Yes, a contempt proceeding is not designed to determine if the design around is not infringing, rather to determine if the new design around is more than colorably different. And if more than colorable, the court cannot find contempt, it is not to "ignore" the order, it is that if more than colorable, the order was followed, no violation. If merely colorable, there will be a contempt, again no "ignoring" the order at all.

Under the standard we adopt, a judgment of contempt against an enjoined party for violation of an injunction against patent infringement by the making, using or selling of a modified device may not be upheld without a finding that the modified device falls within the admitted or adjudicated scope of the claims and is, therefore, an infringement. Since the judgment holding Jones in contempt of court does not satisfy this standard, it must be vacated.
KSM

Infringement must be found on any design-around in a contempt hearing accusing devices never adjudged before the court. It is a standard.

3) The exchange program had to do with the DVRs that was allowed to be continued used without any design around, absolutely nothing to do with the 4 million DVRs, don't mix the two.

Not mixing the two. Just stating the obvious: DISH/SATS moved the court to find their warranty exchange program to be within the limits of the injunction.

DISH/SATS could also attempt to move the court to prove their workaround on adjudicated devices no longer infringes. Otherwise, the legal status of the adjudged devices is that they infringe.

 

[Hall]

...in TiVo's view, everyone else's DVRs (such as DirecTV or Comcast or TW...) all likely infringe on its patent.

"Infringe" isn't the appropriate word in the case of DirecTV and Comcast though. They both have deals or agreements with TiVo and therefore are allowed, i.e. licensed, to use TiVo's technology.

 

[Tyralak]

"Infringe" isn't the appropriate word in the case of DirecTV and Comcast though. They both have deals or agreements with TiVo and therefore are allowed, i.e. licensed, to use TiVo's technology.

Not only that, DirecTV can drop their arrangement with Tivo at any time. There's a reason they bought ReplayTV. Now that they have Replay's patents, Tivo couldn't do sh*t to them anyway.

 

[jacmyoung]

"Infringe" isn't the appropriate word in the case of DirecTV and Comcast though. They both have deals or agreements with TiVo and therefore are allowed, i.e. licensed, to use TiVo's technology.

Infringment isn't appropriate only that D* and C* have not been found to infringe. I did not say they two are infringing, rather TiVo would wish they also infringe.

Having deals with TiVo means TiVo allows them to infringe, if indeed they do infringe. The patent system allows the patent owner to refuse others to use, make, sell products that infringe on its patent, but the patent owner is free to also allow others to use, make, sell products that infringe its patent, for a fee or for free.

The threat of possible finding of infringement is the key to coax an agreement. On the other hand the confidence that the products do not infringe leads to others not signing an agreement or rendering an existing agreement meaningless.

In E*'s case, they believe they no longer infringe, as a result they continue to use their DVRs without signing any agreement.

In D*'s case, they bought ReplayTV and became more confident TiVo would not be easily find them infringing, as a result they began to drop DirecTiVo accounts by the thousands each quarter, replacing them with their own DVRs.

 

[Greg Bimson]

Having deals with TiVo means TiVo allows them to infringe, if indeed they do infringe.

Good point. After all, the agreement between TiVo and DirecTV simply:

1) allows TiVo to create and market a new TiVo DVR with DirecTV
2) allows DirecTV to license the TiVo software on the current base of DirecTV DVR's with TiVo
3) prevents TiVo and DirecTV from suing each other regarding infringement

Not only that, DirecTV can drop their arrangement with Tivo at any time. There's a reason they bought ReplayTV. Now that they have Replay's patents, Tivo couldn't do sh*t to them anyway.

Yes, but if that were the case, the current DirecTV DVR with TiVo becomes a doorstop. And it is entirely possible that even with Replay's patents, DirecTV may still infringe on the Time Warp patent, just like TiVo may infringe upon the play/ff/rewind functions patented by ReplayTV. The litigation prevention in the contract would also be "dropped", and therefore, it's game on...

But Liberty Media is kinda keen on TiVo, so I don't expect any of that to happen.

 

[jacmyoung]

...Yes, but if that were the case, the current DirecTV DVR with TiVo becomes a doorstop...

An agreement is a legally binding contract, D* cannot just drop it. But D* also does not have to promote such arrangement. Apparently the agreement did not call for such effort on the D* part to promote the deal, because D* is fast in dropping the existing DirecTiVo subs.

D* may infringe on TiVo's patent, it has nothing to do with ReplayTV patent, but with ReplayTV patent in D*'s hand, it serves as a deterrence to any potential TiVo's lawsuit against D* becasue D* can counter-sue that TiVo may infringe on its ReplayTV patent.

D* seems so far has taken a better course with TiVo, by paying TiVo a minimal fee and avoiding any legal battle, but the fee D* has paid so far is still in the many tens of millions. At the same time all players are watching the next ruling by the court on the TiVo v. E* case. A no-contempt will benefit all DVR users because it will affirm that there are many DVR technologies out there that people can choose from, not just a limited few.

TiVo has so far been successful in making an impression on the public, through this lawsuit, that its DVR patent is the only one that matters in the DVR world, unfortunately for TiVo, they are faced with this guy called Charlie Ergan, who not only is "stubborn" but also has the money, and lack of opposition from its own board, to press on to the end. Most companies would have settled long ago, but not him.

And if no contempt, he will have the last laugh.